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Ash v. Lake Oswego School District

filed: November 25, 1992.

STANLEY E. ASH; BARBARA ASH; CHRISTOPHER ASH, A MINOR BY AND THROUGH HIS NATURAL PARENTS, STANLEY E. ASH AND BARBARA ASH, PLAINTIFFS-APPELLEES/ CROSS-APPELLANTS,
v.
LAKE OSWEGO SCHOOL DISTRICT, NO. 7J, DEFENDANT-APPELLANT/ CROSS-APPELLEE.



Appeal from the United States District Court for the District of Oregon. D.C. No. CV-90-00746-HJF. Helen J. Frye, District Judge, Presiding.

Before: Thomas Tang, Melvin Brunetti, and Ferdinand F. Fernandez, Circuit Judges. Opinion by Judge Tang.

Author: Tang

TANG, Circuit Judge:

Lake Oswego School District ("LOSD" or "School District") appeals the judgment of the district court following a bench trial. The district court ruled in favor of plaintiffs Stanley, Barbara, and Christopher Ash on their claims under the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. ("IDEA"). The court concluded that LOSD failed to provide Christopher with a free appropriate public education as required by the IDEA. Further, the court found that the Ashes were entitled to reimbursement for having provided Christopher with the education to which he was entitled under federal law. The Ashes cross-appeal on the ground that they are entitled to reimbursement beyond that provided by the district court. We affirm the judgment in all respects.

The facts of this case are set forth in the well-written, well-reasoned opinion of the district court. Ash v. Lake Oswego Sch. Dist. No. 7J, 766 F. Supp. 852 (D. Or. 1991). We see no need to duplicate these commendable efforts and so we consider the parties' arguments only insofar as they would prevent us from adopting the district court's opinion as our own.

The central issue in this case is whether the 1989 Individualized Education Program ("IEP") mandated by IDEA, see 20 U.S.C. §§ 1401(a)(18)(D), 1412(1), 1413(b), 1414(a)(5), and prepared by LOSD can provide educational benefit to Christopher Ash, an autistic child, without placing him in a "residential setting." See 766 F. Supp. at 858-61 (describing both administrative finding that residential placement was unnecessary as well as contrary testimony presented to district court); id. at 861-63 (discussing standards by which IEP is measured). In other words, in 1989 could Christopher learn outside of a residential placement? The district court answered this question in the negative and therefore found the School District's 1989 IEP to be flawed. Id. at 863.

The School District raises essentially three challenges to the district court's decision. First, LOSD contends that the district Judge applied an incorrect standard in assessing the sufficiency of the 1989 IEP prepared by the School District. Second, LOSD argues that insufficient weight was given to the Oregon administrative hearing officer's determination that Christopher did not require residential placement in 1989. Finally, the School District asserts that the district court clearly erred in reversing the administrative determination. Below, we discuss these contentions and the Ashes' cross-appeal.

I.

The School District's first challenge concerns the standard by which the district court measured the 1989 IEP. In reviewing the merits of an IEP, the question for federal courts is whether the program is "reasonably calculated to enable the child to receive educational benefits." Board of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982); accord W.G. v. Board of Trustees, 960 F.2d 1479, 1483 (9th Cir. 1992). The "free appropriate public education" to which a disabled child is entitled under IDEA "does not mean the absolutely best or 'potential-maximizing' education." Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1314 (9th Cir. 1987). Instead, "states are obliged to provide 'a basic floor of opportunity' through a program 'individually designed to provide educational benefit to the handicapped child.'" Id. (quoting Rowley, 458 U.S. at 201).

The School District argues that the district court lost sight of this standard and instead measured the School District's IEP to determine whether it would permit Christopher to be "successful outside of a classroom setting." 766 F. Supp. at 863. The district court's comment, however, merely reiterates the testimony of plaintiffs' expert, Dr. Cerreto. See id. at 860 ("'Education for Chris is the ability to be successful outside certainly the classroom and that has incorporated a lot more things than just traditional academics.'") (quoting witness). In referring to success outside of the classroom, Dr. Cerreto was emphasizing that, to assess Christopher's learning ability, one must refer to skills not usually taught in the conventional classroom. As an example, Dr.Cerreto referred to toilet training. The district court clearly understood this, as indicated by its Conclusion that "daily living skills, such as toileting and eating and dressing, can only be taught to [Christopher] and reinforced for him in the consistency of a residential setting." Id. at 863.

We find no error in the standard applied by the district court to assess the 1989 IEP prepared by LOSD. The court explained the Rowley standard in detail. See id. at 861-63. It further described the issue as whether the IEP "denies Christopher sufficient access to a free, appropriate public education through which Christopher can derive some educational benefit." Id. at 863 (emphasis added). Finally, the court concluded that "LOSD has not demonstrated that its IEP would provide the type and amount of consistency necessary in order for Christopher to obtain some educational benefit from its implementation." Id. (emphasis added). We thus reject the School District's first contention.

II.

LOSD further argues that the district court failed to give sufficient weight to the state hearing officer's finding that the child did not require residential placement. In reviewing findings made during the administrative proceedings contemplated by 20 U.S.C. § 1415(b)(2), (c), we have adopted the following observation of the First Circuit:

The traditional test of findings being binding on the court if supported by substantial evidence, or even a preponderance of the evidence, does not apply. This does not mean, however, that the findings can be ignored. The court, in recognition of the expertise of the administrative agency, must consider the findings carefully and endeavor to respond to the hearing officer's resolution of each material ...


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